Who Gets The House In A Divorce in Massachusetts?

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who gets the house in a divorce Massachusetts

In This Article

Navigating the division of your family home in a Massachusetts divorce is no small feat. 

The state doesn’t go for a straight 50/50 split but rather follows equitable distribution. This means a fair, though sometimes complex, division of property. 

You want clarity. You want fairness. And most of all, you want to know your options without all the legal mumbo jumbo. 

Whether you’re leaning towards selling the house for a clean break or considering a buyout, we’ve got you covered. 

Let’s break down what you need to know and how you can move forward with confidence.

Key Summary

  • If an agreement cannot be reached, the court decides based on factors listed in Massachusetts General Law, chapter 208, section 34.
  • Massachusetts follows equitable distribution, not 50/50 community property laws.
  • Selling the home and dividing proceeds provides a clean break.
  • Buyout options allow one spouse to keep the home by compensating the other.
  • Professional appraisals may be necessary to determine fair market value of disputed assets like the marital home.

Equitable Distribution in Massachusetts

Massachusetts is not 50/50 a community property state. Instead, it follows the principle of equitable distribution. This means that assets acquired during the marriage are divided fairly, considering various factors:

Marital Property

Marital property includes anything you and your spouse acquired during your marriage. It can be the house you bought together, the car you both drive, any bank accounts you opened jointly, or even a business you started after saying “I do.”

Commingling of Assets

Things can get tricky when it comes to mixing up assets. Let’s say you saved some money before marriage, but then you started using it to pay the mortgage on your marital home. This is commingling, and it can blur the lines between what’s yours and what’s both of yours.

Factors Considered by the Court

They’ll look at when you acquired the property, how you used it during the marriage, and even your intentions regarding ownership. The goal is to ensure everyone gets a fair shake in the end.

Remember, when in doubt, it’s always a good idea to consult with a legal pro who can help you sort through the details and protect your interests.

Division of Marital Assets in Massachusetts

Massachusetts follows the principle of equitable distribution when dividing property in a divorce. However, determining what is fair can be complex, but you have a few options you can explore:

Selling the Home and Dividing the Proceeds

Selling the family home and dividing the proceeds is one of the most straightforward options for dividing marital property. This option is ideal because it provides a clean break.

Buyout and Refinancing Options

Buyout Option

One spouse may wish to keep the family home, while the other is willing to relinquish their interest in it. In such situations, the spouse who wants to keep the home may have the option to buy out the other spouse’s equity interest. This process involves:

  • Determining the Equity Interest: The equity interest is the home’s value minus any outstanding mortgage balance and liens. It represents the portion of the home’s value that the spouses collectively own.
  • Negotiating the Buyout Amount: The spouse who wishes to keep the home must negotiate a buyout amount with the other spouse. This amount is based on the equity interest in the house.
  • Financing the Buyout: Once the buyout amount is agreed upon, the spouse who wants to keep the home may need financing to pay the other spouse their share of the equity interest. This can be done through a cash payment, or mortgage refinance.
ℹ️ TAKE NOTE: The current interest rates in Massachusetts are 6.98% for a 30-year fixed mortgage and 6.50% for a 15-year fixed mortgage.

Transferring Title to One Spouse with Refinancing

When one spouse transfers the home title solely to themselves through refinancing, there are some important things to think about when doing this:

  • Financial Obligations: This refers to any money-related responsibilities that come with owning a home like mortgage payments, property taxes, insurance, and maintenance costs.
  • When transferring title, you must ensure both spouses understand and agree on who will be responsible for these financial obligations going forward.
  • Feasibility: This is about whether it’s realistic or possible for one spouse to take over ownership of the home on their own. It involves looking at the person’s income, credit history, and ability to afford the mortgage payments and other expenses associated with homeownership.

National Refinancing Mortgage Rates

ProductInterest RateAPR (Annual Percentage Rate)
30-Year Fixed Rate7.20%7.24%
15-Year Fixed Rate6.70%6.77%
5-1 Adjustable Rate Mortgage (ARM)6.48%7.75%

SOURCE: Bankrate

Massachusetts General Law, c. 208, §34

Massachusetts law provides guidelines for property division in divorces under General Law, chapter 208, section 34. This statute lists factors that courts must consider when dividing property.

These factors include the length of the marriage, the parties’ conduct during the marriage, and each spouse’s contribution to the acquisition, preservation, or appreciation in value of their respective estates.

Length of the Marriage

The first factor considered is how long a marriage lasts. Only so much can happen in a 4-year marriage, while a whole lot can occur in a 20-year marriage.

In shorter marriages, typically less than 10 years, it’s common for each party to retain the assets they brought into the marriage, especially if they contributed little or nothing to those assets during the marriage.

For mid-length marriages, lasting between 10 and 15 years, it’s common for the appreciation of assets during the marriage to be divided, regardless of whose name the assets are under.

In longer marriages, those lasting more than 15 years, there’s a higher likelihood of a fair division where property may be assigned to one spouse, usually the one in a better financial position, regardless of ownership before or during the marriage.

Financial and Non-Financial Contributions

Both financial and non-financial contributions made by each spouse during the marriage are considered.

  • Financial contributions: These include income earned, investments made, and any financial assets accumulated during the marriage.
  • Non-financial contributions: Tasks such as managing household affairs, raising children, and supporting the career advancement of the other spouse are also valued.

Future Financial Needs and Ability to Earn Income

Courts also consider each spouse’s future financial needs and earning capacity post-divorce. Factors such as employability, education, training, and health conditions are assessed to determine each party’s ability to support themselves independently.

Future Financial NeedsAbility to Earn Income
Debts: It's important to look at any money that each spouse owes from during the marriage, like credit card bills, loans, mortgages, or other money issues.

Knowing how much debt there is helps make sure it's divided fairly in the divorce agreement.
Health Conditions: If one spouse has health issues or disabilities, it can be harder for them to work and earn money.

Chronic illnesses, injuries, or disabilities might mean they can't do certain jobs or need special help. This can affect how much money they can earn overall.
Living Expenses: Thinking about the regular expenses each spouse faces, like rent or mortgage payments, bills for utilities, money spent on groceries, transportation costs, and other essential purchases.

Knowing about these expenses helps determine what each spouse needs financially over time and whether they can keep up their lifestyle after the divorce.
Work Experience: The amount and variety of work experience each spouse has are really important for how much money they can make.

Their past jobs, the skills they learned at work, and any special training they got can make it easier for them to find good jobs and earn more money.
Potential Future Costs: It is important to look ahead and consider any possible future money needs. These could include medical bills, school fees for the kids, or other unexpected expenses.

Planning for these future costs helps ensure that each person is ready to deal with any money problems that might come up later on.
Education: The amount of schooling each spouse has can really affect their chances of finding a job that pays well and provides a steady income.

Usually, the more education you have, the more options you'll have for better-paying jobs and moving up in your career.

Conduct and Actions During the Marriage

Courts may consider factors such as infidelity, substance abuse, domestic violence, and other misconduct that impacted the marriage or financial well-being of the parties involved.

Age, Health, and Needs of Each Spouse

Courts aim to ensure that both parties are fairly provided for and can maintain a reasonable standard of living post-divorce, taking into account factors such as health issues or disabilities.

Someone in their 30s has more time and chances to build up money and assets compared to a 60-year-old who’s in retirement.

Temporary Use and Possession of the Marital Home

If children are involved, the court may grant the custodial parent temporary use and possession of the marital home. This arrangement is typically made with the well-being of the children in mind, aiming to provide them with stability and continuity during a time of significant change in their family dynamic.

  • The primary goal is to minimize disruption to the children’s lives by allowing them to remain in the familiar surroundings of the family home.
  • It recognizes the importance of maintaining stability and continuity for children, especially during the transition period of their parents’ divorce.
  • Temporary use and possession of the marital home can also facilitate co-parenting arrangements and ensure both parents remain actively involved in their children’s lives.

Duration of Temporary Use and Possession

If the court doesn’t issue a restraining order, the spouse living in the house can stay up to 90 days. If needed, this time frame can be made longer by asking the court.

This timeframe allows the involved parties to adjust to their new circumstances while providing a sense of stability and security.

Responsibilities of the Non-Custodial Parent

While the custodial parent may have temporary use and possession of the marital home, the non-custodial parent typically retains certain responsibilities, including financial contributions towards:

  • Mortgage payments
  • Property taxes
  • Maintenance costs

Importance of Valuation and Disclosure

Importance of Valuation and Disclosure

Accurate valuation of the marital home holds significant importance in the process of property division during a divorce in Massachusetts. Here’s why:

Transparency and Trust:

  • Full disclosure of all assets and liabilities, including the marital home, is required from both spouses during divorce proceedings.
  • Honest disclosure fosters trust and transparency in the divorce process, promoting a more amicable resolution.

Legal Compliance:

  • Failure to disclose assets, including the value of the marital home, can have legal repercussions.
  • Massachusetts law mandates the full disclosure of all assets and liabilities, and failure to do so may result in the reopening of the divorce judgment.

Preventing Disputes:

  • Transparent valuation of the marital home helps prevent disputes and disagreements between spouses regarding property division.
  • Accurate disclosure of assets minimizes the likelihood of litigation and ensures a smoother divorce process.

Seeking Amicable Solutions

Divorcing couples can work together to come to an agreement about property division, including the family home. This may involve negotiation and compromise, but it can often result in a more satisfactory outcome for both parties.

Professional Appraisals and Their Role

In cases where the value of the marital home is disputed, a professional appraisal to determine its fair market value may be necessary. This can be crucial in ensuring that property division is equitable and fair to both parties.

Frequently Asked Questions

Can one spouse keep the house if it was owned before the marriage?

If the home was owned by one spouse before the marriage, inherited, or gifted during the marriage, the court may award sole ownership to that spouse in certain circumstances.

What should I do if my ex-spouse doesn't comply with financial agreements?

If your ex-spouse doesn’t comply with financial agreements, document the violations, consider mediation or legal action, and consult an attorney to enforce court orders or seek remedies for non-compliance.


Dealing with who gets the family house after a divorce in Massachusetts can be stressful. Knowing the laws and what factors matter in making that decision is important for everyone involved.

By thinking about the consequences of real life and money and getting help from experts, you can aim for a fair and reasonable agreement that helps them start fresh.

While the divorce settlement is being finalized, you can contact us to help you sell your house.

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